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UNITED STATES v. CALABRIA

July 9, 1985

UNITED STATES OF AMERICA
v.
JOSEPH CALABRIA



The opinion of the court was delivered by: BECHTLE

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 614 F. Supp.]

 MEMORANDUM AND ORDER

 BECHTLE, J.

 Presently before the court is defendant Joseph Calabria's motion for suppression of evidence. For the reasons stated herein, defendant's motion will be denied.

 FACTS

 At a time prior to the relevant events in this case, the United States Air Force and General Electric Company ("GE") entered into a series of contracts in connection with the Minuteman missile program. These contracts were the subject of a routine civil audit by the Defense Contract Audit Agency ("DCAA") between May, 1981 and March, 1982. During the course of the audit, the auditors came upon some irregular record-keeping practices at GE, i.e., labor cost mischarging. In April, 1981, Edward J. Kadish ("Kadish"), DCAA's resident auditor, reported the irregularities to his supervisors at DCAA and expressed the need for additional audit resources "to determine the extent to which the property and labor problems exist and their impact on the Government." DCAA followed up on Kadish's request and, subsequently, Henry Simpkins ("Simpkins") interviewed several GE managers, including Joseph Calabria ("Calabria").

 On October 27, 1981, Simpkins interviewed Calabria in Calabria's office. Other GE employees were present. Because Simpkins was following an audit procedure and was not initiating or following the course of a criminal investigation, he did not tell Calabria that the interview was in connection with a criminal investigation, or that Calabria was or could be a target of a criminal investigation, or that Calabria had a constitutional right not to incriminate himself or the right to an attorney. As the concluding remarks of the interview, Calabria made certain statements which could be construed as incriminating.

 The gravamen of defendant's motion is that his incriminating statements should be suppressed because he was not given his Miranda warnings prior to his making the statements. See Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).

 DISCUSSION

 The government and defendant agree that Miranda requires that a suspect be given Miranda warnings prior to a custodial interrogation. The parties dispute, however, whether the statements were made as a result of custodial interrogation.

 To determine whether Calabria was in custody, the court must look at the circumstances surrounding the incriminating remarks and decide whether those circumstances made up a coercive environment Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977); Beckwith v. United States, 425 U.S. 341, 48 L. Ed. 2d 1, 96 S. Ct. 1612 (1976). (1) The court notes that the location, Calabria's own office, benefited the defendant and was not a place where Calabria would have felt coercion. See Government of Virgin Islands v. Berne, 412 F.2d 1055 (3d Cir.), cert. denied, 396 U.S. 837, 24 L. Ed. 2d 87, 90 S. Ct. 96 (1969). (2) The interview occurred during regular business hours. (3) During the interview Calabria was in the presence of GE employees whom he knew well. In no sense of the word was he "isolated." (4) Calabria did not suspect that Simpkins intended to arrest him or that Simpkins had probable cause to arrest him. Simpkins was not a law enforcement official concerned with criminal liability *fn1" and did not have the authority to arrest Calabria. See U.S. v. Martinez, 588 F.2d 495 (5th Cir. 1979); Ouletta v. Sarver, 307 F. Supp. 1099 (E.D. Ark.), aff'd, 428 F.2d 804 (8th Cir. 1970); U.S. v. Webb, 398 F.2d 553 (4th Cir. 1968). (5) Finally, there does not appear to have been any intent on the part of Simpkins during the interview to restrain Calabria from leaving the room or from terminating the interview, nor does it appear that Calabria thought that he was so restrained. In brief, the court finds that the environment at the time defendant made the incriminating statements was not coercive. The custodial element is not satisfied.

 In addition, the court finds that defendant's statements were not in response to interrogation. See Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). Defendant voluntarily made these statements. He did not make these statements in response to any questions or to any attempt by Simpkins to elicit a response. Instead, at the conclusion of the interview, defendant, without prompting by anyone, made these statements.

 CONCLUSION

 Accordingly, defendant's motion to suppress the statements made at the conclusion of the October 27, 1981 interview will be denied.

 An appropriate Order will be entered.

 ORDER

 AND NOW, TO WIT, this, 9th day of July, 1985, for the reasons set forth in the accompanying Memorandum, IT IS ORDERED that defendant Joseph Calabria's motion ...


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